By Chantal Tode
December 3, 2012
A recent ruling by the Federal Communications Commission regarding certain types of text messages could open the door for brands to make a bigger commitment to mobile marketing.
The FCC’s ruling last week clarifies that sending a text message to consumers confirming the receipt of an opt-out request does not violate the Telephone Consumer Protection Act. Several marketers have been sued over these messages because the TCPA does not address opt-out confirmation texts directly, causing others to take a more cautious approach to mobile marketing.
“The big news is that thanks to the FCC ruling on the petition we filed back in February, it has taken one more hurdle away from marketers using the mobile channel to do effective marketing,” said Jim Milton, president and CEO, SoundBite Communications, Bedford, MA.
“The regulatory environment, the ambiguity, has caused a lot of marketers to say, let’s stop using the mobile channel, even though the response can be so good, we are worried about the legal implications,” he said.
“We do expect this ruling for some companies to remove that roadblock now.”
Prior express consent
When a consumer opts in to receive text messages from a company and then later decides to stop receiving messages, it is widely considered a business best practice for companies to send a confirmation notice acknowledging that they received the opt-out request and will stop sending messages to that person.
However, the TCPA was written before the days of mobile marketing and does not address this issue directly. As a result, several lawsuits claimed that these messages violated the TCPA.
SoundBite Communications filed a petition with the FCC in February seeking clarification on the issue of opt-out confirmation texts.
“For confirmation texts of the type SoundBite describes, we conclude that a consumer’s prior express consent to receive text messages from an entity can be reasonably construed to include consent to receive a final, one-time text message confirming that such consent is being revoked at the request of that consumer,” last week’s FCC ruling said.
SoundBite decided to file the petition after witnessing first-hand how the ambiguity over opt-out confirmation texts was hurting the mobile marketing industry.
The impact included watching several clients and prospects pull back on their mobile strategy over potential legal and regulatory issues.
Additionally, clients who stopped sending opt-out confirmation texts for fear of being sued reported receiving multiple opt-out requests from the same consumers who did not know if their message had been received.
The effort received wide industry support from CTIA – The Wireless Association, U.S. Chamber of Commerce, the Mobile Marketing Association and others.
“A cottage industry had evolved over the last few years with class action lawyers saying that confirmatory text messages were a violation of the TCPA,” Mr. Milton said. “This resulted in several settlements, one which was over $8 million because of the ambiguity in TCPA.
“We know of some brands – retailers and CPGs – that basically curtailed a lot of their mobile marketing activity because of this issue,” he said. “It was one more example of a regulatory environment that makes it difficult for marketers to use the mobile channel.
“We also had situations where companies would stop sending out those confirmatory messages and consumers would then send multiple stop messages out. The overall customer experience was negatively impacted.”
Chantal Tode is associate editor on Mobile Marketer, New York